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UNIT 5. THE EUROPEAN JUDICIAL BODIES

Read and translate the texts. Remember as many details as you can. Render the texts.

The judicial system of the Community was, until Nice, a two-tier system. It consists of the ECJ, which was established by the ECSC Treaty of Paris in 1952, and of the CFI, created in 1989 in order to relieve the growing case load of the ECJ. These courts derive their fundamental task from art. 220 EC which provides that ‘the Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of the Treaty the law is observed’. The Nice Treaty adds a clause to this effectively providing for a third tier of jurisdiction in the form of judicial panels to be attached to the Court of First Instance.

The European Court of Justice

This is the main court of the European Community. It consists of one judge per member state, although there is no nationality requirement. The court sits in a ‘grand chamber’ of 11 judges, replacing the plenary session, and sometimes still in plenary according with the rules in the Court’s Statute. In all other cases it sits in chambers of three, five or seven judges.

The ECJ is assisted by eight Advocates General, whose task is to deliver reasoned opinions on cases brought before the court. This number may be increased by the Council, acting unanimously, at the request of the Court of Justice. Both Judges and Advocates General are appointed for a period of six years. The President of the ECJ is elected every three years by its judges, who are chosen from those with the proper qualifications for the highest judicial appointments in their home country or who are juris consults of recognised competence, by ‘Common Accord’ of the governments of the member states. They act independently of the member states.

Each member of the court has three “legal secretaries” (or referendaires) who are their legal assistants. They undertake preliminary research and draft essential documents, including draft judgments and opinions, but may not take part in the court’s deliberations as these are secret and result in a single collegiate judgment.

The court’s procedure consists of a written phase, which ends in a report by the ‘judge-rapporteur’, an oral hearing, which is usually very brief, followed by the Opinion rendered by the Advocate General. They assist the court and they give an independent view of the proceedings before the publication of the decision of the court. The court does not always follow the opinion of the AdvocateGeneral. The final judgment is then given, usually after a number of months have elapsed.

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The written procedure and the oral hearings, as well as the delivery of the Advocate General’s opinion, are translated into the official languages of the court. Only the French language is usually used in these deliberations, although some chambers have occasionally worked in other languages such as German and English. A single collegiate judgment is delivered. This often represents a compromise of differing views and this may account for some of the difficulties when reading a judgment, which sometimes appears to have an absence of reasoning on certain points.

The court gives a single judgment and no dissenting views are given. Enforcement of judgments is through the national courts of member states. The language in which the case is heard is a matter for the plaintiff, except where the defendant is a member state when it will be in the language of that state.

The Court of First Instance (CFI)

The CFI was created in 1989 as a means of relieving the ECJ of its growing case load. Under art. 225 as amended by Nice the CFI will have at least one judge per member state The CFI has now become the judge for all direct actions under art. 230, 232 (actions and failure to act), art. 235 (action for damages), art. 236 (staff cases), and 238 (arbitration clauses, with the exception of those which will be assigned to a judicial panel and those the statute reserves for the main court. There are no Advocates General, but for certain cases which may involve substantial investigations into facts a judge may be appointed to carry out a similar function to that of an Advocate General. This judge will then not take part in the deliberations or the judgment. Although the Court of Justice itself will retain competence to give preliminary rulings, the statute may entrust such responsibility to the Court of First Instance in specific cases.

Judicial panels

Specialised chambers, also known as judicial panels, may be set up by the Council to deal with specific matters at first instance, such as in the field of intellectual property. A new art. 229a allows the Council acting unanimously to attribute to the ECJ the responsibility of settling intellectual property disputes between private parties, particularly concerning the Community patent. An appeal from the decisions of judicial panels may be made to the Court of First Instance.

The overall judicial architecture in the Treaty of Lisbon largely replicates that in the existing Treaties. Art. 19(1) TEU inelegantly provides that “the Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts”. The General Court is the new name for the CFI, and specialised court is the new appellation for judicial panels. There is an interesting modification relating to the appointment of judges and Advocates General, whereby a panel reports on the suitability of candidates for these jobs.

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The heads of jurisdiction are much the same as before, as is the division of jurisdiction between the Community courts.

There are some significant amendments to particular provisions, which largely follow those laid down in the EU Constitution. Thus, for example, art. 263 TFEU, which is the successor to art. 230 EC, now provides explicitly for review of the European Council, and the acts of bodies, offices and agencies of the European Union intended to produce legal effects for third parties. Art. 263(4) TFEU also modifies the standing provisions for non-privileged applicants in accord with the formulation laid down in the EU Constitution, thereby dispensing with the need to show individual concern in relation to a regulatory act that does not entail implementing measures.

Task 1. Find in the texts the following terms and explain them.

To attribute powers; each successful Treaty; to underpin the legal system; primary /secondary legislation; to challenge Community legislation; the CFSP; vocational training; to argue.

Task 2. Translate the following words and phrases into English.

Принимать законодательные меры; создание Сообщества; судебная практика суда ЕС; нарушение Договоров; злоупотребление полномочиями; свобода ведения экономической деятельности; исключительная компетенция; Согласительная комиссия; соглашение об ассоциированном членстве в ЕС; дать основание для (подачи) иска; проводить широкие консультации.

Task 3. Work in pairs. Discuss with your partner the following points.

1.What is the competence of the Community limited by?

2.Have the powers of the Community shrunk after its inception?

3.What are the sources of Community law?

4.Can primary legislation be challenged in courts?

5.On what grounds can the validity of secondary legislation be challenged?

6.What hierarchy of norms does one find in the Lisbon Treaty?

7.How are these norms defined?

8.How is the European Parliament involved in the law-making process under consultation procedure / co-operation procedure / co-decision procedure / ascent procedure?

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SUPPLEMENTARY READING

Must a Politician Be Kind?

1. What kind of people can succeed (иметь успех) in politics? What traits of character should they have?

Here is an opinion of a modern expert about the problem.

Any politician who wants to win should be a real personality (личность). He/she should have a will (воля) to win and a wish to have power. He/she should use power not for his/her own needs but for improving the situation in the country and for achieving definite aims.

A good politician should have an ability to risk and to love risking if he/she wants to win. He/she should be able to take non-traditional decisions and to give up (жертвовать) some people from his/her team. If a good politician understands that some people can’t perform their functions he/she should change these people and forget how hard it was. A politician, who can’t change some members of the team when it is necessary will lose. It’s very important for a politician to have clever advisors but it is he/she who is responsible for decisions. Through people often say that a politician who has clever advisors is not clever!

Politician decisions may be ruthless (безжалостный) for some people and good for the majority of the people. So, a good politician should be ready to take ruthless decisions.

A politician who follows one and the same strategic line and doesn’t revise his/her ideas won’t live a long life in politics. But again, people may say that he/she has no will to finish something!

No image-maker can help a person who is nothing. It is impossible to improve ‘nothing’. Image-makers and advisors can add only 15–20% to the image of a politician.

The power should be used by a politician not for power itself but for achieving definite aims.

2. Which of the expert’s ideas do these statements confirm (подтверждать)?

A politician should be power-loving.

A politician should be gifted.

A politician should be risky.

A politician should be ambitious.

A politician should be pliable (гибкий, уступчивый).

Must a Politician Be Kind?

The Pope is a cleric (духовное лицо) and a politician because he is the head of the Roman Catholic Church and the head of the tiny state, the Vatican. Here is an article from the Newsweek magazine about the wartime Pope.

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1.What war do they mean in the article? Find all the facts that can prove your answer.

Many historians thought that the wartime Pope didn’t try to stop the Holocaust (истребление, бойня).

By Kenneth L. Woodward

The voice of Pius Xll is a lonely voice in the silence and darkness. He is the only ruler on the Continent of Europe who dares (смеется) to raise his voice at all.

Editorial, The New York Times, Dec. 25, 1941

Something shameful (постыдный) is going on. That Pius XII was silent in the face of the Holocaust; that he was in fact pro-German if not pro-Nazi. It was The Deputy, Rolf Hochhuth’s 1963 play that created an image of Pius as a coward (трус).

In fact, Pius XII was neither silent nor inactive. In 1937 in a special document Pope Pius XII condemned (осудил) Nazism as un-Christian. The document was secretly brought to Germany and read in the Roman Catholic churches. In his 1942 Christmas message the Pope became the first person of international stature to condemn the Holocaust.

The Nazis understood the Pope too well. “His speech is one long attack on everything we stand for”, declared the Gestapo. In February 1942, Protestant and Catholic leaders in Holland occupied by the Nazis condemned camps. But only Catholic bishops (епископы) read the letter aloud in their churches.

The Pope’s crime – if there is one – is that he chose the role of diplomatic peacemaker rather than martyr (мученик). Historian Christopher Browning is right to say that “the Holocaust is a story with many victims (жертвы) and not too many heroes. I think we are native if we think one more hero could stop it”.

2.What kind of politician was the wartime Pope?

3.What did the Pope do in the face of the Holocaust?

4.Do you think that a cleric should be involved in politics? Why?

The problem of priorities. The Treaty of EU, Lisbon

The wide scope of the EC Treaty, covering a number of areas normally reserved to national law alone, coupled with the extended application by the ECJ of the principle of direct effect, led inevitably to a situation of conflict between national and EC law. In such a case, which law was to prevail? The way in which that conflict was resolved was of crucial importance to the Community legal order; it was a constitutional problem of some magnitude for Member States.

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The EC Treaty is silent on the issue of which law should in the case of conflict take priority, and always has been. Perhaps this was a diplomatic omission; perhaps it was not thought necessary to make the matter explicit, since the extent to which Community law might be directly effective was not envisaged at the time of signing the Treaty. In the absence of guidance, the matter was left to be decided by the courts of Member States, assisted by the ECJ in its jurisdiction under Article 234 (ex. 177).

The question of priorities between directly effective international law and domestic law is normally seen as a matter of national law, to be determined according to the constitutional rules of the State concerned. It will depend on a number of factors. Primarily it will depend on the terms on which international law has been incorporated into domestic law. This in turn will depend on whether the State is monist or dualist in its approach to international law. If monist, it will be received automatically into national law from the moment of its ratification, without the need for further measures of incorporation. If dualist, international law will not become binding internally, as part of domestic law, until it is incorporated by a domestic statute. In the EC, France, for example, is monist; Germany, Belgium, Italy and the UK are dualist. But whether received automatically, by process of ‘adoption’, or incorporated by statute, by way of ‘transformation’, the incorporation of international law does not itself settle the question of priorities. The status accorded to international law will depend, in the case of each State, on the extent to which that State has provided for this, either in its constitution, where it has a written constitution, or, where it has no written constitution, in its statute of incorporation.

There is wide variation in the way in which, and the extent to which, Member States of the Union have provided for this question of priorities. Where States have a written constitution, there will be express provision for this issue. At the time of their accession, it ranged from the whole-hearted acceptance of international law of the Dutch constitution (art. 66), which accords supremacy to all forms of international law, whether prior or subsequent to domestic law, to art. 55 of the French constitution, which, at that time, provided that treaties or agreements duly ratified ‘have authority superior to that of laws’ (thus leaving open the question of secondary legislation), to art. 24 of the German constitution (Grundgesetz (GG)), which provided, rather loosely, that the State ‘may transfer sovereign powers’ to international organisations; or Article 11 of the Italian constitution whereby the State ‘consents, on conditions of reciprocity with other States, to limitations of sovereignty necessary for an arrangement which may ensure peace and justice between the nations’. (Under the principle of reciprocity, if one party to an agreement breaches his obligations, the other contracting parties may regard themselves as entitled to be relieved of theirs.)

A State which does not have a written constitution, and which is dualist, such as the UK, must provide for priorities in the statute of incorporation itself. This statute will have the same status as any other statute. As such it will be vul-

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nerable to the doctrine of implied repeal, or ‘lex posterior derogat priori’, whereby any inconsistency between an earlier and a later statute is resolved in favour of the latter. The later statute is deemed to have impliedly repealed the earlier one. On a strict application of this doctrine, any provision of a domestic statute passed subsequent to the statute incorporating EC law, in the British case the European Communities Act 1972, which was inconsistent with EC law, would take priority.

Given the differences from State to State it is clear that if national courts were to apply their own constitutional rules to the question of priorities between domestic law and EC law, there would be no uniformity of application, and the primacy of EC law could not be guaranteed throughout the Community. Not only would this weaken the effect of Community law, it would undermine solidarity among the Member States, and in the end threaten the Community itself. It is no doubt reasons such as these which led the ECJ to develop its own constitutional rules to deal with the problem, in particular the principle of supremacy, or primacy, of EC law.

The nature of EC law: direct and indirect effect

One of the most noteworthy features of European Community law to date is the impact it is perceived to have had on the legal systems of the Member States. By way of contrast with other international organizations of States such as the Council of Europe or the United Nations, the European Community has developed into an organization of States with a relatively autonomous legal system, a system of norms which bind each of the States and which have been internalized – in many cases without national implementing measures – into the domestic systems of the different Slates as a fairly uniform body of law. Much of the development of the Community’s legal system has been brought about not by the express agreement of the States which founded the Community nor by means of a detailed plan for an integrated legal system, but through the interpretive practice and influence of the European Court of Justice (ECJ). Through its case law, the Court developed a bold theory of the nature of EC law, attributing to it the characteristics and force which it considered necessary to underpin a set of profoundly altering and potentially far-reaching common goals within a group of politically and geographically distinct nations and historically sovereign States. The success of this development has depended upon a rather different approach from that which has governed the domestic treatment of norms of international law between States.

The domestic effect of an international agreement or treaty has traditionally been a matter to be determined in accordance with the constitutional law of each of the States which is party to that treaty. In countries like the UK which adopt a dualist approach to international law, international agreements and treaties do not of themselves give rise to rights or interests which citizens of the States which are signatories can plead and have enforced before their national

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courts. Even if they are designed for the protection of individuals (as, for example, in the case of the European Convention on Human Rights (ECHR)) the provisions of these treaties bind only the states at an intergovernmental level, and in the absence of implementation, cannot be directly domestically invoked or enforced by citizens.

It is apparent from arguments made in the early cases before the Court that at least some of the Member States did not envisage that the provisions of these Treaties would be any different, in terms of their domestic effect, from other international treaties and conventions. The ECJ, however, took a rather different approach to the nature and effect of the EC Treaties, an approach which was apparently based on the Court’s vision of the kind of Community which those Treaties had set out to create, and the kind of legal system which the effective creation of such a Community would necessitate. This view became clear in its very early case law in which the Court outlined what has become known as the ‘direct effect’ of Community law.

Solicitor or barrister? Financial Times, July 1998

The solicitor is the first point of contact with the law for a client in the United Kingdom. The solicitor listens carefully to the client, making sure their needs are clearly understood and then explains the legal position and tenders advice. By contrast, barristers will only see the client in the company of a briefing solicitor. The barrister is the specialist with particular skills in advocacy, a consultant who will examine the case and decide what line to take in court. The barrister will be reliant on the detailed brief prepared by the client’s solicitor. There are only a few solicitors who are allowed to present cases in the higher courts. Many more solicitors work in their litigation departments and spend much of their time preparing briefs for counsel. Barristers are self-employed in the independent Bar. Solicitors are normally salaried and may be offered a share in the profits of the practice if they are successful. The Bar is a small but influential independent body with just over 8000 practicing barristers in over 400 chambers in England and Wales. In addition, there are about 2000 barristers employed as in-house lawyers.

The Bar is an advocacy profession. The Bar’s right of the audience in the higher courts remains virtually unchallenged. The work divides equally between civil and criminal law. There are over 70 specialist areas, including major ones like chancery (mainly property and finance) and the commercial bar.

Judges in England and Wales have mostly been barristers of 10 year standing, then Queen Chancellors, and are appointed by the Lord Chancellor. Judges cannot work as barristers once they are appointed. A barrister who is a part-time judge is known as a Recorder. The Crown Prosecutor, who works for the Director of Public Prosecutions, is responsible for prosecuting criminals based on evidence presented by the police.

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Solicitors do a variety of work – corporate and commercial, litigation, property, private law, banking and project finance, employment law and environmental law. There are about 66000 précising solicitors in England and Wales.

HOW MANY NEW WORDS DO YOU REMEMBER?

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PART III. GLOBAL ECONOMIC TRENDS

TOPICAL VOCABULARY

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